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EX PARTE WISNER, 203 U. S. 449 (1906)

U.S. Supreme Court

Ex Parte Wisner, 203 U.S. 449 (1906)

Ex Parte Wisner

No. 9, 10 Original

Submitted May 14, 1906

Decided December 10, 1906

203 U.S. 449


The Supreme Court of the United States alone possesses jurisdiction derived immediately from the Constitution and of which the legislative power cannot deprive it; that of the circuit courts depend on some act of Congress.

No suit which could not have been originally brought in the circuit court of the United States can be removed therein from the state court.

Under §§ 1, 2, 3, of the Act of March 3, 1875, 18 Stat. 470, as amended by the Act of March 1, 1887, 24 Stat. 552, corrected by the Act of August 13, 1888, 25 Stat. 433, an action commenced in a state court by a citizen of another state against a nonresident defendant who is a citizen of a state other than that of the plaintiff cannot be removed by the defendant into the circuit court of the United States.

Where the circuit court refuse to remand to the state court a case removed to it, but over which it has no jurisdiction, mandamus from this Court is the proper remedy, and not prohibition.

Abram C. Wisner, a citizen of the State of Michigan, commenced an action at law on February 17, A.D. 1906, in the Circuit Court in and for the City of St. Louis and State of Missouri against John D. Beardsley, a citizen of the State of Louisiana, by filing a petition, together with an affidavit on which that court issued a writ of attachment, in the usual form, directed to the Sheriff of St. Louis. The sheriff returned no property found, but that he had garnisheed the Mississippi Valley Trust Company, a corporation of Missouri, and also had served Beardsley with summons in the City of St. Louis.

Saturday, March 17, A.D. 1906, the garnishee answered, and on the same day Beardsley filed his petition to remove the action from the state court into the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri, on the ground of diversity of citizenship, together

Page 203 U. S. 450

with the bond required in such case. An order of removal was thereupon entered by the state court, and the transcript of record was filed in the circuit court of the United States.

Monday, March 19, Wisner moved to remand in these words:

"Now at this day comes plaintiff, by his attorneys, Jones, Jones & Hocker, and appearing specially for the purposes of this motion only, saving and reserving any and all objections which he has to the manifold imperfections in the mode, manner, and method of the removal papers, and expressly denying that this court has jurisdiction of this cause, or of the plaintiff therein, respectfully moves the court to remand this cause to the Circuit Court of the City of St. Louis, from whence it was removed, for the reason that this suit does not involve a controversy or dispute properly within the jurisdiction of this court, and that it appears upon the face of the record herein that the plaintiff is a citizen and resident of the State of Michigan and the defendant a citizen and resident of the State of Louisiana, and the cause is not one within the original jurisdiction of this court; hence this court cannot acquire jurisdiction by removal."

The motion was heard and denied April 2, 1906, the circuit court referring to Foulk v. Gray, 120 F. 156, and Rome Petroleum Company v. Hughes, 130 F. 585, as representing the different views of the courts below on the question involved.

On April 23, Wisner applied to this Court for leave to file a petition for mandamus as well as a petition for prohibition; leave was granted, and rules entered, returnable May 14, 1906, and the cases submitted on the returns to the rules.

Page 203 U. S. 455

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